2013 Annual Student Symposium - "The Federal Leviathan: Is There Any Area of Modern Life to Which Federal Government Power Does Not Extend?"

The University of Texas School of Law will host the 2013 Federalist Society National Student Symposium on March 1st and 2nd, 2013. The theme for the symposium will be "The Federal Leviathan: Is There Any Area of Modern Life to Which Federal Government Power Does Not Extend?" Visit the Texas Student Symposium web site for more information and to register: http://texasfederalistsociety.com/symposium/.

The steady growth in the size of government as a percentage of GNP has been one feature of the last century and certainly the last 50 years. The scope of federal governmental power has expanded and grown even more rapidly than its financial size. Conservatives and libertarians express dismay over this. At times and in some areas liberals are not much happier about it. Yet in many ways— financial, legal, ethical, and practical—more and more of our citizens feel that much of this government is either vital to an acceptable society or at least necessary to avoid unacceptable injustice. Even those who feel government does more than it should see no practical way to significantly reduce its size given the financial and moral commitments we have made as a society.

To many others, as we use the federal government to protect or aid our citizens we often find that seemingly desirable goals expand into programs which may reach far beyond those goals. Is that expansion a serious problem? If so, is it nonetheless the inevitable cost of providing such necessary protections? Is such growth inevitable in practice? Is it possible to pare back? Or must we accept that a government of a certain size will be much as this one is? Additionally, for many conservatives and libertarians there is just too much government. For some liberals, the cost of some government programs has become bloated and increasingly blocks or makes unaffordable those things which government really should do.

To explore these questions we will examine the role government plays and the goals it has tried to achieve in the areas of civil rights, the criminal law, and the environment. We will examine both what it did initially and how these efforts have developed over the years. We will discuss various complaints about “crony capitalism,” “strings attached to federal money,” and the problems linked to entitlements. All of these greatly increase dependence on the federal government and concomitantly its power. But are the powers exercised here simply the necessary component of providing our citizens vital services which will otherwise not be offered in a fair and reliable manner? And finally, while this conference is focused to a large degree on the federal government, it will also explore how many of these problems are just as serious or more serious at the state level. In other words, in each of the areas touched on by our panels, is the problem a federal government problem or a challenge posed by government at any level?

It is easy to find widespread agreement among Left and Right alike that corporations should not receive special privileges or a leg up on their competition from the federal government. Yet examples of “crony capitalism” appear in many areas. Waivers of regulations, bans on selling products such as insurance across state lines, and bailouts of banks deemed too big to fail are just a few examples. How is it that with a general consensus on all sides that this a problem it continues unabated? Are there practical steps that all sides can agree on which will stem these abuses? Are the abuses as bad as claimed? Do we simply need to be realistic that when government accomplishes things there will be a certain amount of influence peddling and that it is unavoidable in any system? Did the Founding Fathers anticipate this problem? If so, what did they hope to do to avoid it?

John A. Allison IV, CEO and President, Cato Institute

Henry T.C. Hu, Allan Shivers Chair in the Law of Banking and Finance, University of Texas School of Law

This panel will examine how environmental laws have significantly expanded the role of the federal government in recent years. On the one hand, there is a good deal of support intellectually and politically for the core goals of much of this environmental legislation. On the other hand, there is concern that runs the political gamut that these regulations have created a huge amount of bureaucracy and some absurdity. From snail darters to light bulbs, questions arise. Consistent with the theme of this conference, the panel will especially explore whether environmental regulations have expanded beyond their intended purpose and exceeded the proper boundaries on federal power. For those who think that is the case, we will ask what in practice would be a likely way to reverse that trend? Are there ways to achieve some of the initial goals at far less cost? What are the obstacles to doing so? This panel will also cover international law as it pertains to the environment and consider how those laws fit into our overall governmental picture.

Lynn E. Blais, Leroy G. Denman, Jr. Regents Professor in Real Property Law, The University of Texas School of Law

John D. Echeverria, Professor of Law and Acting Director of Environmental Law Center, Vermont Law School

Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

Jeremy A. Rabkin, Professor of Law, George Mason University School of Law

Federalization of Criminal Law Panel11:00 a.m. - 12:45 p.m.LBJ Auditorium, LBJ School of Public Affairs

The federal government wishes to use the criminal law to control bad actors. Federal prosecutors see themselves as protecting all of our citizens against crimes that are heinous and interstate in nature. Liberals have long expressed concern that federal law enforcement efforts too often trample on the appropriate rights of the accused. In recent years, many conservatives have come to share some of those concerns in two ways. First, they question the scope of the federal role in criminal law because the federal government lacks a police power under the Constitution. Second, they often think that the federal government in particular (although sometimes state governments as well) have ignored mens rea and, as with other areas of this conference, have expanded good goals into excessive powers. This discussion will seek to shed light on this crucial aspect of federal power.

R. Alex Acosta, Dean, Florida International University College of Law and Former U.S. Attorney for Southern District of Florida

John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University of America Law School

William G. Otis, Adjunct Professor of Law, Georgetown University Law Center and Former Assistant United States Attorney

Julie Rose O’Sullivan, Associate Dean and Professor of Law, Georgetown University Law Center

This panel will examine the scope of Congress’s spending power and any change in its ability to limit how and when federal money may be spent in light of the Supreme Court’s recent landmark opinion in National Federation of Independent Business v. Sebelius. NFIB marks the first time the Supreme Court has ever struck down an exercise of the spending power on the grounds that it was unconstitutionally coercive. Clearly any institution spending money, including Congress, wishes to exercise control to assure that the money is spent for the desired purposes. The federal government has in practice increased the use of limitations on how its money may be spent to leverage lawmaking it desires in the states. This panel will explore the constitutional limits on this power in light of NFIB. Is this exercise of power consistent with our federalist system? Or is it indicated, if not necessary, to assure responsible spending. If the government does exercise leverage through the limitations it places on its expenditures, is there any reason why it shouldn’t use that means to further the Administration’s policies?

Lynn A. Baker, Frederick M. Baron Chair in Law, The University of Texas School of Law

Michael S. Greve, Professor of Law, George Mason University School of Law

The Civil Rights Act of 1964 was passed by a bipartisan Congress for a noble purpose. But much of that purpose seems to have changed in the ensuing decades. Race and gender neutrality has been replaced with race and gender preferences, and antidiscrimination laws have been used to allow federal oversight of things that have only the vaguest connection with race or gender. The result has been major initiatives regarding schoolyard bullying, disparate impact inquiries into school discipline policies, and interference with traditional employment criteria, among many other intrusions. This panel will explore whether these laws are still focused on achieving a clear set of goals. Has the law expanded to the point where it actually impedes those goals? Or is this expansion simply a realization that those goals required such expansion to be achieved? As part of this exploration, the panel will examine whether the efforts to help minorities through preferences actually work. For those who think they don’t or who think there are some problems, once again the question arises: What would any change in these policies look like in practice?

Lino A. Graglia, A. W. Walker Centennial Chair in Law, The University of Texas School of Law

Sanford V. Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, The University of Texas School of Law